Founder and Chief Lawyer at Ahuraic lawa full-service business and entertainment law firm in Los Angeles.
Comedians spend their careers making people laugh, but the challenge of protecting a comedian’s intellectual property is no laughing matter. When we think of intellectual property or, more specifically, copyright, we often think of the protections afforded to films, television, books and works of art. The problem of “joke theft” is either ignored or left to an unspoken code of conduct among comedians. The internet, social media and meme culture force us to take a closer look at what rights comedic artists have if their material is stolen.
Comics make a lot of their money by touring and streaming/broadcasting specials. Jokes are based on the element of surprise, so once they’re published, all plans for a comedy special featuring that material go out the window.
Jokes are also short-lived. The best stand-up comics – think Robin Williams – are masters of improvisation and crowd-work. They may have scripted jokes in their back pockets, but they play best in real-time, off-the-cuff situations. Every show is different and exciting, and the jokes are easy to choose.
So, how do you even start protecting comedians and their original works? These are the ground rules I give to my comedian clients and companies that support them.
1. Know what to protect.
Like all creative works, it starts with copyright.
Copyright protects creative works that are made tangible, not words that come out of your mouth. It protects original material, not figures of speech like chickens crossing the road. It protects expression, not ideas. Comedians who “work the room” can therefore expect their one-liners to be picked up and reposted. That’s the nature of real-time stand-up comedy.
However, the jokes in their back pockets are a different story. Long-term exhibits where comics work for hours in front of a mirror should be protected. They are the comedian’s bread and butter, and their theft deprives comedians of the financial rewards and benefits that result.
Long jokes are both original and difficult to replicate. Even when underlying ideas are stolen, few have the skills to successfully rework the jokes. Instead, those jokes are often copied verbatim, opening the door to claims of copyright infringement.
2. Make it tangible.
If a comedian wants to “own” an original joke, it must be reduced to a tangible medium, such as writing it on paper or recording his act. If you’re filming your act, make sure your entertainment attorney drafts a contract with your videographer. Otherwise, they could end up owning the copyright to the actual recording.
3. Be vigilant.
When it comes to prank theft, social media is the biggest culprit. Joke aggregators make their living posting other people’s jokes. Fans film comedians at their shows and post the material on YouTube or Instagram, giving the public access to performances that people normally pay to see. While this could boost a comedian’s fame, comics that maintain control over who sees their material have an advantage. The last thing a comedian wants is to sue or threaten a fan, and such action is often impracticable.
While enforcement may seem impossible, sites like YouTube, Facebook and Instagram have developed efficient mechanisms to report copyright infringement. This is because the Digital Millennium Copyright Act protects online service providers from liability for copyright infringement, but only if they remove infringing content upon notice from a copyright owner. In exchange for alleviating the legal burden of inspecting every piece of user-generated content, they will promptly remove the content if notified in writing. In my experience, the DMCA takedown notice is most often used for music or videos, but it can also be used to protect comic copyrights.
Some comedians require audience members to put their phones in a bag before the show, and many comedy clubs do the same with sealed pouches. Prominent notices can alert attendees that no recordings are allowed, and members of the public may be removed if they record. However, most comedy clubs don’t do any of these things. If prank theft or overexposure becomes a problem for a comedian, he or she may consider asking the club for these measures, and even including them in the rider’s contract.
Why does all this matter?
Copyrights have the exclusive right to publish, reproduce and monetize their work. This is now more important than ever for comedians, who, unlike musicians, don’t receive royalties every time their jokes are heard. They rely on live touring and specials.
Comedy, like music, has two copyrights: one to the composition (the words or melody) and one to the recording (often owned by record labels). Organizations such as the American Society of Composers, Authors and Publishers and Broadcast Music, Inc. track song usage and manage payment of publication royalties to songwriters. There are efforts to create an equal system for comedians, but we’re not there yet. However, there is hope.
Platforms that haven’t paid comedians for their jokes are now paying the price. In December, Spotify had to remove several renditions of comics like Tiffany Haddish and Kevin Hart. In February, comedians including the estates of Robin Williams and George Carlin sued Pandora for not properly licensing recordings or paying royalties the way it pays songwriters. Until these issues are resolved, comedians and their representatives must take matters into their own hands.
It comes down to.
Comedy is creative work. Whether you’re telling jokes, taking pictures, writing novels, or running a business that supports these creators, it’s essential to take the proper precautions to protect this work. If you don’t, you could lose what you’ve created all your life. If you’re a business owner, it’s very easy to accidentally infringe on a creative copyright, and comedy is no different. Protecting copyrights, even in comedy, is serious business.
The information provided herein is not legal advice and is not intended to be a substitute for advice from legal counsel on any particular matter. For legal advice, you should consult a lawyer related to your specific situation.